Allahabad High Court
Hanuman And Anr. vs The State Of U.P And Anr. on 17 March, 2023
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 13
Case :- APPLICATION U/S 482 No. - 5398 of 2013
Applicant :- Hanuman And Anr.
Opposite Party :- The State Of U.P And Anr.
Counsel for Applicant :- R.K Singh Raj,Seema Gupta
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for applicants, learned A.G.A. for the State and perused the material available on record.
By means of this application under Section 482 Cr.P.C. the applicants have prayed to set aside the summoning order dated 6.3.2012 passed by learned Civil Judge (Junior Division)/Judicial Magistrate, Court No. 1 Hardoi in Criminal Complaint Case No. 534 of 2011, under Sections 324, 504 and 506 IPC, Police Station Pali, District Hardoi as well as impugned judgment and order dated 24.5.2013 passed by learned Additional Sessions Judge, Court No. 5, Hardoi in Criminal Revision No. 112 of 2012 in the aforesaid complaint case whereby the case was altered under Sections 326, 324, 504 and 506 IPC and the non-bailable warrants dated 5.9.2013."
Learned counsel for applicants has submitted that the applicants are innocent and have falsely been implicated in this case. Further submission is that on behalf of the applicants one case was lodged by applicant Hanuman against opposite party no.2 and Ram Baran under Section 324, 323, 504 and 506 IPC as Case Crime No. 44 of 2010, Police Station Pali, District Hardoi. Being aggrieved with this FIR, opposite party no. 2 lodged a false and frivolous FIR as Case Crime No. 321 of 2010, under Sections 324, 504 and 506 IPC in order to create pressure upon the applicants. During investigation, Investigating Officer found that injury received on the body of injured is forged, fabricated and manufactured, therefore, final report was submitted against the applicants. Being aggrieved with the final report, opposite party no. 2 filed a protest petition, which was treated as complaint case.
In the said complaint case after recording the statement of complainant and witnesses under Section 200 Cr.P.C. and 202 Cr.P.C., trial court summoned the applicants under Section 326 IPC without applying its judicious mind. It is further submitted that as the injury which was forged and fabricated is treated to be true then the case does not travel beyond the purview of Section 324 IPC. The trial court without appreciating the evidence available on record has wrongly summoned the applicants only on the basis of oral evidence of the complainant and witnesses.
Before arguing the case on merits, learned counsel for the applicants while pressing the present petition submits that the trial below while summoning the applicants has materially erred and did not follow the dictum of law as propounded by the Hon'ble Supreme Court in various cases that summoning in criminal case is a serious matter and the court below without dwelling into material and visualizing the case on the touch stone of probability should not summon accused person to face criminal trial. It is further submitted that the trial court has not taken into consideration the material placed before the trial court and, therefore, the trial court has materially erred in summoning the applicants.
All the submission made relates to the disputed question of fact, which cannot be adjudicated upon by this Court. At this stage, only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. Considering the arguments of learned counsel for the parties and going through the record, it cannot be said that no offence is made out against applicant and all the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings under Section 482 Cr.P.C.
The prayer for quashing the proceedings is refused.
So far as regard the cognizance and summoning order passed by the learned trial court concerned, at the stage of taking cognizance, trial court can simply form an opinion as to whether the case is fit for taking and committing the matter for trial or not. In the present case, learned trial court clearly expressed his opinion that he perused all the record and clearly indicated that the material placed before him is sufficient to proceed the case. Thus, the cognizance order is not a proforma order. Every aspect is touched by learned trial court and appellant failed to adduce any evidence which caused prejudiced to him. So, the cognizance and summoning order is perfectly valid and there is no occasion to quash the same.
The disputed defence of the applicants cannot be considered at this stage. In the absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, which is already refused. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless.
As requested, the applicants are permitted to appear before the concerned court within fifteen days from today through counsel and move an application claiming discharge under Section 245(2) Cr.P.C. The concerned court shall after hearing the counsel decide the application on merits, in accordance with law, within a period of two months from today, which shall not exceed.
No coercive measure shall be adopted against the applicants for a period of two months from today or till the disposal of the discharge application, whichever is earlier.
If the concerned court after hearing the counsel for the accused feels persuaded to have the view that the accused ought not to have been summoned and the charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing the discharge application. On the other hand, if the trial court even after hearing the counsel for accused holds the view that the accused has been rightly summoned and the material brought on record does not indicate the charges to be groundless it shall make an order to that effect and proceed further in the matter, in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits.
With the aforesaid directions/observations, this petition under Section 482 Cr.P.C. is disposed of.
Order Date :- 17.3.2023
Virendra
